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Court Ruling Clouds Salmon Recovery by Mike Lee, Herald staff writer Tri-City Herald, September 27, 2001

Some of the Pacific Northwest's threatened and endangered salmon species may not necessarily warrant federal protection if a recent court ruling in Oregon holds water.

That could loosen salmon protection rules across the region -- but it may not bring wild salmon runs any closer to health.

In a Sept. 10 decision, U.S. District Court Judge Michael Hogan removed Oregon coastal coho from the Endangered Species Act list. The ruling said that's because the federal government did not account for hatchery coho when deciding the wild run needed strict federal protection.

That has broad implications up and down the West Coast, where 25 of 26 threatened and endangered fish populations have related hatchery stocks. The National Marine Fisheries Service has interpreted its job as recovery of "natural populations" of fish.

"I would not be surprised if you see copycat lawsuits to get at other listings," said Jan Hasselman, staff attorney at the National Wildlife Federation in Seattle, who promised a challenge to the ruling.

The suit was filed by the Pacific Legal Foundation, challenging the systematic destruction of hatchery salmon on the Alsea River in Oregon.

"It's ironic. Now that the court has decided that NMFS must count hatchery coho in determining whether coho are indeed threatened, there are no more hatchery coho in the Alsea River basin left to count," said Russell C. Brooks, foundation lawyer. "If these fish are listed now, it will be only because government workers slaughtered them by the thousands."

NMFS created "the unusual circumstance of two genetically identical coho salmon swimming side by side in the same stream, but only one receives ESA protection while the other does not," Hogan said in a written decision that was muted by East Coast terrorist attacks the next day. "The distinction is arbitrary," the judge added.

The distinction is questioned by people who are being told to make sometimes drastic changes to water and land use for the sake of fish at a time when more than 1.7 million mostly hatchery salmon and steelhead have returned to Bonneville Dam this year.

For those who feel oppressed by NMFS' salmon management tactics, Hogan's ruling is some of the best news in years.

Oregon's coastal coho have no ESA protections, though state rules and federal harvest rules still apply. "The hated 4(d) rule has evaporated (for coastal coho)," said NMFS spokesman Brian Gorman, referring to land use regulations that sparked the ire of farmers across Eastern Washington.

"It's a positive move in our direction ... the direction of irrigated agriculture," said Chuck Garner, manager of the Kennewick Irrigation District. The district this summer suffered severe water shortages largely because of federal demands that more water be left in the Yakima River for fish. "It could be quite a precedent," Garner said.

A similar but much broader lawsuit was filed two years ago in federal district court in Washington, D.C., by farmers, real estate agents, builders and ranchers in Washington state. It argued there's no biological basis for distinguishing between hatchery and wild stocks, especially since Congress specifically required hatcheries be used to augment wild runs.

With Hogan's ruling in hand, those interest groups hope the Washington, D.C., court will follow suit and that NMFS will remove some species from the ESA list based on large quantities of hatchery fish.

"The (Hogan) decision will mean there is a greater role for hatchery fish in recovery and also there may very well be some listings out there that if you consider the number of hatchery fish, the fish themselves are no longer in danger of extinction," said Dean Boyer, spokesman for the Washington State Farm Bureau.

NMFS has until early November to appeal Hogan's ruling. That decision will be one of the first real tests for incoming regional administrator Bob Lohn.

"We might prefer to deal with the issue in a policy-administrative way that would satisfy any likely court challenge," said Gorman, who did not rule out an appeal.

But NMFS' job is much larger than reconsidering its approach on the Alsea River. The agency likely will need to address hatchery policy across the board -- a policy that already was faulted for inconsistency before Hogan's ruling.

Conservation groups are lining up to prepare their own appeal if NMFS fails to make one.

Hasselman, the environmental lawyer, said Hogan's view of the ESA was too narrow and that it's not clear that Oregon's coastal coho would avoid federal protections even if hatchery fish were counted.

But he's most concerned about the intent of legal challenges trying to roll back the ESA. "Forcing delisting through this kind of approach is not going to solve the underlying issues here," he said.

"Efforts like this are comparable to pulling batteries out of the fire alarm," Hasselman said. "You don't have that annoying beep, but you still have the fire."

Related Links:
Complete text of Hogan's ruling at www.tri-cityherald.com/documents/

... An agency's decision is arbitrary and capricious if it:

has relied on factors which Congress had not intended it to consider,
entirely failed to consider an important aspect of the problem,
offered an explanation for its decision that runs counter to the evidence before the agency,
or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

... Once NMFS determined that hatchery spawned coho and naturally spawned coho were part of the same DPS/ESU, the listing decision should have been made without further distinctions between members of the same DPS/ESU.